Buzzworks Leisure Limited For Judicial Review Of A Decision Of The South Ayrshire Licensing Board
| Jurisdiction | Scotland |
| Judge | Morag Wise, QC |
| Neutral Citation | [2011] CSOH 146 |
| Date | 02 September 2011 |
| Docket Number | P284/11 |
| Published date | 02 September 2011 |
| Court | Court of Session |
| Year | 2011 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 146 | |
| P284/11 | OPINION OF MORAG WISE QC Sitting as a Temporary Judge in the petition of BUZZWORKS LEISURE LIMITED Petitioners; For judicial review of a decision of the South Ayrshire Licensing Board of 11 November 2010 to grant a Provisional Premises Licence for premises at 87 Main Street, Prestwick to the Second Respondents and for production and reduction of the said Provisional Premises Licence ________________ |
Petitioners: Agnew of Lochnaw, Q.C., Blair; Gillespie Macandrew
First Respondents: S. Wolffe, Q.C.; Simpson & Marwick
Second Respondents: D. Armstrong, Q.C.; Drummond Miller
2 September 2011
Introduction
[1] The petitioners are a company operating licensed premises in Prestwick. The first respondents are the South Ayrshire Licensing Board and the second respondents are J D Wetherspoon plc, a company that made an application to the first respondents for a provisional premises license in relation to premises at 87 Main Street, Prestwick. The application was made in terms of section 45 of the Licensing (Scotland) Act 2005 ("the 2005 Act"). The petitioners lodged a written objection to the second respondents' application, which came before the first respondents for determination on 11 November 2010. On that date, after hearing submissions from the solicitor for the petitioners and the solicitor for the second respondents, the first respondents decided to grant the application. The petitioners seek declarator that the decision to grant the second respondents a provisional premises license was unlawful and/or unreasonable and for reduction of the decision. The basis for the challenge is twofold, namely (a) that the Board proceeded on a wrong legal basis, that they considered they were bound by the decision of Sheriff Principal Sir Stephen Young in the case of Tesco Stores Ltd v Aberdeen City Licensing Board (unreported, 24 June 2010), and (b) that in any event the statement of reasons given by the first respondents did not adequately explain the reasons for the decision. Both respondents oppose the merits of the petitioners' case. In addition the second respondents contend that the petitioners are barred by mora, taciturnity and acquiescence from insisting on the application. That plea was not argued as a preliminary matter but during the course of each party's submissions.
Submissions for the petitioners
[2] Senior counsel for the petitioners explained that the relevant application of the second respondents was for a provisional premises license with a capacity of 552 customers, a type of premises known colloquially as a "super pub". There were a number of objections to the application including objections from the petitioners which were narrated in a formal letter dated 12 October 2010 (no. 6/1 of process). The three main grounds for opposition were (1) overprovision, it being argued that the centre of Prestwick was more than adequately served with licensed premises, (2) a claim that granting the application would be inconsistent with the licensing objective of "securing public safety and prevention of public nuisance", and (3) that grant of the application would be inconsistent with the licensing objective of "protecting and improving public health". In making submissions to the Board it was argued that the proposed premises would be the equivalent of adding three more public houses to Prestwick town centre. The first respondents licensing policy (no. 6/4 of process) states at paragraph 8.1 that the town centre of Prestwick is "well served in relation to licensed premises". Reference was made to the first respondents' statement of reasons in granting the application. This is produced at no. 6/5 of process. Paragraph 9 of the statement of reasons summarises the submissions made. The reasons for the decision appear at paragraph 10a. That paragraph is in the following terms:-
"The Board is required to grant an application unless there are grounds for refusal in accordance with section 23 of the Act. The Board, having regard to all the submissions and evidence before them, were of the view that the grant of this application would not be inconsistent with any of the licensing objectives. The Board was conscious that the existing policy statement acknowledged that the locality was 'well served' in relation to licensed premises. The Board had regard to the capacity figures for the proposed premises and existing premises, however, in the absence of any concerns on the part of the Board in relation to inconsistency with any of the licensing objectives, the Board was constrained by the terms of the recent Tesco decision in Aberdeen and accordingly could not refuse the application on grounds of over-provision".
[3] As a backdrop to his submissions on challenging the statement of reasons, senior counsel for the petitioners set out in detail the scheme of the 2005 Act which had replaced the Licensing (Scotland) Act 1976. Section 4 of the 2005 Act sets out the "Licensing objectives" which are then applied in terms of section 5. Section 6 requires that a Licensing Board must have a policy and in setting the policy the Board must ensure that it seeks to promote the licensing objectives. Section 7 requires that a licensing policy must include a statement on overprovision of "licensed premises". As that statement is effectively made pursuant to section 6, the statement on overprovision must also seek to promote the licensing objectives. The grounds on which an application for a license can be refused appear in section 23(5) of the Act. There are five main grounds on which an application can be refused in terms of that subsection including inconsistency with licensing objectives, unsuitability of the premises and over-provision. It was submitted that inconsistency with the licensing objectives was a different ground from either unsuitability of premises or overprovision, both of which are separate grounds of refusal in terms of section 23(5).
[4] Returning to the licensing objectives listed in section 4(1) of the Act, these are also five in number as follows:-
(a) preventing crime and disorder,
(b) securing public safety,
(c) preventing public nuisance,
(d) protecting and improving public health,
(e) protecting children from harm.
In R (Thornby Farms) Ltd v Daventry DC [2003] QB 503 at 507 it was said that:
"An objective which is obligatory must always be kept in mind when making a decision even while the decision-maker has regard to other material considerations".
So far as the obligation to publish a statement of licensing policy was concerned (section 6) a licensing board required to do that at the beginning of every three year period. The requirement in section 7 to assess overprovision included a consideration by the Board of the number and capacity of licensed premises in the locality. Section 142 of the 2005 Act permits the Scottish Ministers to issue guidance to licensing boards as to the exercise of their functions under the Act. That had been done and the relevant guidance is produced at no. 6/2 of process.
[5] In developing the argument that the first respondents erred by giving inadequate reasons, senior counsel relied on the well established rule that decisions of this sort must leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what material considerations were taken into account in reaching it - Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 at 348, Mirza v City of Glasgow Licensing Board 1996 SLT 1029 at 1034, Kelly v Shetland Health Board 2009 SC 248 at para.15 and R W Cairns Ltd v Busby East Church Kirk Session 1985 SLT 493. It was submitted that, regardless of whether or not the petitioners were correct the first respondents had erred in law in relation to the "Tesco decision", they had in any event erred by giving inadequate reasons for holding that the application was not inconsistent with the licensing objectives. There is no explanation of how they reached the conclusion that the application would not be so inconsistent. There was no explanation as to why each of the grounds of objection in relation to inconsistencies with licensing objectives had been rejected. Consistency or inconsistency with the licensing objectives was clearly a material issue and one of the possible grounds for refusal of the application. It was simply unclear how that issue had been dealt with or what material considerations had been taken into account by the Board in reaching the decision that they did. In Leisure Ins (UK) Ltd v Perth & Kinross District Licensing Board 1991 SC 224 it was said that "... behind every ground for refusal there must be adequate reasons, and that for these reasons there must be a proper basis in fact". The statement of reasons simply did not disclose what the basis for them was. There was nothing that allowed the petitioners or the court to understand how this aspect of the decision was reached.
[6] In developing the argument that the first respondents had erred in law in relation to the Tesco decision, emphasis was placed on the part of the statement of reasons where it was said "the Board was constrained by the terms of the Tesco decision in Aberdeen, and accordingly could not refuse the application on grounds of overprovision". It was first noted that the Board had clearly made no decision on whether or not there was overprovision as the statement seemed to indicate that the constraints they thought were upon them by the Tesco case meant that they had no power to refuse on grounds of over-provision. There was no explanation of what aspect of the Tesco decision constrained the Board which was an argument itself that inadequate reasons had been given. Without an explanation of which part of the decision constrained the Board, the petitioners and the court could not know what influenced it and whether that influence was right or wrong....
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Bapu Properties Limited V. City Of Glasgow Licensing Board
...Reference was made to Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345, Mirza, supra, Buzzworks Leisure Ltd 2011 CSOH 146 and Ranachan v Renfrew District Council 1991 SLT 625. Lastly, even if the reasons were found to be inadequate, the defenders' solicitor submitted th......